_Grant v Pine Rivers Shire Council & Ors_

Planning and Environment Court of Queensland|2005-08-30|Before: Mr P

Simmonds Crowley and Galvin for the applicant/Appellant

[1] This appeal is the last remaining of three related submitter appeals against the decision of Pine Rivers Shire Council ('Council') to approve the first co-respondent's application for a development permit for a material change of use in respect of a roughly triangular parcel at Murrumba Downs containing 2.541ha, with frontages to Dohles Rocks Road, Goodrich Road West and the Bruce Highway, and described as lot 2 on SP 151373 in the Parish of Redcliffe[1]. The permit will allow a shopping centre to be constructed there.

[3] The first co-respondent (RNP) applied to Council on 27 October 2003 for a material change of use for a development proposal it described as a 'neighbourhood centre' on the subject land. As presented, the proposal showed a total floor area of 6,695m2 which included a supermarket of 2,660m2 gross floor area (GFA), a child care centre of 500m2 GFA and other uses, with a combined GFA of 3,535m2, including undetermined retail and non-retail uses. The latter was said to include offices, a retail nursery, a veterinary clinic or "amenities". The application was impact assessable and therefore subject to requirements for public notification. Before that occurred RNP removed the retail nursery component.

[4] The material available to the public revealed that the child care centre would be located at the corner of Dohles Rocks Road adjacent to the Bruce Highway and was intended to accommodate 75 children, and include an external play area. On 18 October 2004 Council resolved to approve the application subject to conditions. The child care component was, however, refused. Council's decision notice of 21 October 2004 described the approval as one granting a development permit for a material change of use for a supermarket of 2,660m2 GFA and one or more of a number of stipulated uses with a combined GFA of 4,035m2 including 2,500m2 for retail uses, and the balance for non-retail. Hence while the child care component was refused the GFA of the proposed development was not reduced and the 500m2 which had been allocated to the centre was simply re-allocated to non-retail uses.

[5] Condition 1 of the decision notice was the apparent method by which the Council gave effect to its refusal of the child care centre. It relevantly provided:

The development to be undertaken generally in accordance with ML design Plans: Site Plan (Job No: 4386-01-0 SD01(J) dated March 2004; the Landscape intent plan (Drawing Number 1780-DA-01, Issue B1) dated 31 March 2004; and Sections and Elevations (Job No. 4386-01-0 SD2E and SD3E) dated September 2003 with the following amendments:

Prior to the submission for a development permit of any Building works or Operational Works application, the developer shall submit and have approved an amended Plan of Development incorporating the above amendments. The amended plan shall be approved by Council's Manager, Development Services.

[6] The matter did not rest there. By letter 24 November 2004 RNP made representations to the Council concerning the decision notice and, with respect to condition 1, sought approval of an amended plan of development which deleted the chid care centre and thereby removed the need for the first requirement of that condition. The amended plan clearly showed that the area previously described as "child care" was now intended for use as an "office". On 13 December 2004 Council resolved to grant a negotiated decision notice which approved that amended plan.

[7] No party criticises Council's decision to remove the child care centre component of the original proposal, or suggests that removal was not based on sound town planning reasons. Indeed, the Appellant was powerfully opposed to it in his original written submission to Council of 1 July 2004.

[8] Council's planning scheme in force at the time was a transitional one for the purposes of the Integrated Planning Act 1997 (IPA). Under the scheme the subject land is in the 'General Industry' zone and the proposed uses were either permissible, or prohibited. Under the preceding legislation, the Local Government (Planning and Environment) Act (1990), (PEA), the proposal would have required rezoning approval.

[9] In argument, considerable attention was focussed upon RNP's original application, lodged through its Town Planning consultant, and its description of the proposed use as a "neighbourhood centre"; and, statements in the application which emphasised its potential benefits as a "community focal point". The Appellant contended that the removal of the child care facility was inimical to these aspects of the development and affected a significant change to its nature.

[10] None of the planning scheme documents define "neighbourhood centre" or acknowledge it as a particular form of use and, in truth, the development for which approval was sought always fell comfortably within one of a number of uses dealt with under the Council's Development Control Plan 6 in which the definition for 'local shopping facilities' include a child care centre; and other definitions, for 'central shopping facilities' and 'major supermarket complexes', may also be apt. With or without the child care centre the development, in which the primary feature was a supermarket, was always appropriately characterised under one of these retail use definitions. The town planner's submissions and references to a "neighbourhood centre" were, intending no disrespect, in the nature of puff.

[11] The later, substituted use of the child care site for offices would not alter that characterisation; i.e., the obvious primary function of the proposed development (as a supermarket based centre) did not change with the deletion of the child care facility.

[12] The parties were also at arms length about the legislation which governed the process by which Council should deal with the application. IPA s6.1.28 provides that all applications for assessable development made after the commencement of that section to which a transitional scheme applies (as here) must be assessed and decided under IPA's transitional provisions. In that Act, s3.5.11 provides that in deciding an application an assessment manager may approve all or part of the application subject to conditions decided by the manager and concurrent agencies if any. Section 3.5.11.6(c) provides that where the assessment manager approves only part of the application, the balance of it is taken to be refused. In contrast the PEA provides in s4.4 (5) that in deciding an application the local government must approve, or approve subject to conditions, or refuse.

[13] A proper reading of IPA ss6.1.28, 6.1.29 and 6.1.30 and the Explanatory notes shows that Council was required to assess the application under PEA s4.4(3)[3] and exercise the decision making power in the manner stipulated by PEA ss4.4(5) and 4.4(5A)[4].

[14] Under IPA, the IDAS process may stop when an application is changed by an applicant unless the assessment manager is satisfied that change "... would not adversely affect the ability of a person to assess the changed application": s3.2.9(4)(b). However, IPA s3.5.17 entitles an applicant to make representations to a Council to change a condition during the currency of the applicant's appeal period and, on its face, those changes are not limited in any way. In contrast, under PEA s4.15 a specific power is conferred of approving an application which modifies an existing one if the modifications are "... of a minor nature": ss4.15(2)(a) and 4.15(3).

[15] Council's power under PEA s4.4 (5) to approve an application subject to conditions necessarily implies a power to approve an application in part. That is what occurred in Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council (1994) 85 LGERA 408 in which an application for rezoning and subdivision of land was approved, but subject to conditions which reduced the number of approved lots shown on the plan of development. In a joint judgment, McPherson JA and Ambrose J said, at 414:

"Power to decide an application to amend a town planning scheme by altering a zoning is vested in a local authority by s4.4(5) of the Act of 1990. In the case of an application to subdivide land the relevant provision is s5.1(16). In each instance, it is a power to approve or to refuse the application, or to approve it subject to conditions, otherwise many of the detailed regulatory provisions of the Act and the protection they afford could be readily set a naught. In the case of the particular forms of application identified in s4.15(1) of the Act, a specific power is conferred of approving an application to modify an existing application for approval. Stated in the most general terms, the power so conferred is limited to modifications that are "of a minor nature": see s4.15(2)(a) and 4.15(3).

So far as relevant here, the scope of s4.15(1) is limited to an application for staged rezoning pursuant to s4.5 of the Act, or where a consent application has been made pursuant to s4.12 of the Act. It is not apparent that the present combined application fulfils either description. Outside the confines of s4.15, planning courts in Queensland have previously not acted on a rule like that adopted in Mison (supra) of asking whether or not the imposition of a condition has the effect of "significantly altering" the development in respect of which an application was made. If that test were applied here, it might, depending on the meaning to be ascribed to "significantly", perhaps be difficult for the developer to escape its control. Instead, however, the criterion used in Queensland has so far been whether the alteration in the development comprised in the original application is of such substances, consequence or significance as to call for readvertisement of the application: see JR Constructions Pty Ltd v Brisbane City Council (No 2) (1975) 31 LGRA 261 at 265 (Bythe DCJ), Matus v Cairns City Council (1981) 3 QPLR 106 at 108 (Row DCJ), Harderan Pty Ltd v Logan City Council [1987] QPLR 233 at 238 (Skoien DCJ)."

[16] In Addicoat v Fox (No. 2) (1979) VR 348 Brooking J said at 363:

"In my opinion, a power to grant a permit subject to conditions authorises the responsible authority to grant a permit for a use or development which differs from the use or development the subject of the application for a permit, provided that the difference is not so radical as to enable it to be said, viewing the matter broadly and fairly, that to grant a permit on the supposed conditions would not be to grant the permit applied for with modifications, but to grant a different permit. This is plainly a matter of degree, and indeed it is almost one of impression. In my view, the changes made may be considerable without necessarily bringing it about that the permit granted is different as opposed to a modified permit. Whether more may be countenanced by way of limiting the development or use, as opposed to extending it, before the point is reached at which alteration ceases to be modification and becomes transformation, is a question which I find it unnecessary to decide. On this question fairness and convenience may point towards one conclusion and logic towards another."

[17] Finally, in Barakat Properties v Pine Rivers Shire Council (1994) 85 LGERA 99 the Court of Appeal[5] said at l02:

"Section 4.15 of the Act [the repealed Act] is concerned with the "modification" of specified applications, including a combined application for re-zoning and subdivision. The section envisages an "application ... seeking the modification" of such a combined application (s.4.15(1)), and contains limits on a local authority's power to approved the application for modification. It seems obvious that a local authority can have no greater power to approve, or require modification of an application when no "application ... seeking ... modification" has been made. Its power to impose conditions on an approval does not entitle it to impose a condition than an application be modified in a manner which the local authority could not approve if an application seeking modification had been made.

If justification for this view be needed, it can be found in the doctrine that an application, in this case, a combined application for rezoning and subdivisional approval, cannot be approved subject to conditions which would result in a materially different proposal: see Cambridge Credit Corporation Ltd v Parkes Developments Pty Ltd [1974] 2 NSWLR 590; 33 LGRA 196; Multi Development Corporation v Coffs Harbour Shire Council (1976) 33 LGRA 419 at 426-428. Section 4.15 indicates what is a material difference."

[18] Barakat involved circumstances which plainly lay beyond the boundary of the inherent power, under the PEA, to approve something different from what is proposed. That boundary is breached at the point where the change is something quite significant, and outside what could be sought by the applicant itself. The decision is not, however, authority for the proposition that the imposition of conditions cannot be used in a way which, as here, involves a refusal of a small element of the overall proposal but, in the main, approves it. The power to approve or refuse would be unworkable if refusal of even a minor, unacceptable part of a complex proposal necessitated its entire rejection. Either partial refusal or, as here, refusal by means of a condition must be open and, while the former sits more comfortably with the wording of the legislation, the latter is not prohibited.

[19] The question arising here must of course be determined subject to an acknowledgment that this Court has no power to modify development to any greater extent than the Council, or an applicant seeking to change an application. As the legislative parameters operate, all are subject to the constraint that the change to an application is limited to one which can be characterised as a minor change: see, in relation to the Court, IPA s4.1.52(2)(b).

[20] Analysis of the authorities touching that question reveals a number of accepted principles. Matters of degree and scale will be the primary issues, considered in the context of the usual meaning of the words "minor change" with, perhaps, some assistance from the criteria referred to in the definition of that phrase in IPA, Schedule 10[6]. The Court is required to assess whether or not the application will result in a materially different proposal[7], but will consider that question broadly, and fairly. An important question is whether the change would be likely to attract an adverse submission that was not provoked by the proposal in its original form[8]. All of these questions are to be considered from the view point of ordinary members of the community to whom the right of objection extends[9].

[21] The primary difference between the original development application, and the development approved by the negotiated decision notice is the replacement of the child care centre use with an office use, increasing the latter from an area of 1,000m2 to 1,500m2. As observed earlier, this change does not materially alter the characterisation of the use and its apparent primary function remains that of a supermarket based centre. It is highly improbable a hypothetical objector would have ever foreseen the centre as anything other than something of that ilk, irrespective of the existence or absence of the child care centre. While there has been some cosmetic change to the layout of the proposal to accommodate the new office use, the scale and intensity of the proposed use has remained constant, as has the GFA. The Appellant does not contend there are any unacceptable town planning impacts that arise by reason of the amended physical form, or the layout of the office use now located where the child care centre would have operated.

[22] Some reliance was placed, by the Appellant, on the decision of this Court in Carillon Development (supra) but, there, the Court had to consider whether the deletion of the cinema complex from an application for a mixed use development was a minor change and, unsurprisingly, considered that in light of the nature and substance of the use, which was categorised as a desirable community benefit. The same may be said of a child care centre in this locale but that desirability was strongly tempered by Council's lack of support (for valid town planning reasons) and criticisms originally advanced by the Appellant himself. Indeed, it is reasonable to infer that a rational hypothetical objective would have reached the same conclusions. Further, the cinema complex in dispute in Carillon would have been the only one of its kind in the district whereas, here, the evidence established other child care centres with vacancies in close proximity.

[23] The IPA Schedule 10 definition is in these terms:

"'minor change' for a development approval, means a change to the approval that would not, if the application for the approval were remade include the change -

(a) require referral to additional or concurrence agencies; or

(b) cause development previously requiring only code assessment to require impact assessment; or

(c) for a development requiring impact assessment - be likely, in the assessment manager's opinion, to cause a person to make a properly made submission objecting to the proposal, if the circumstances allowed."

[24] Here the change cannot be said to trigger subparagraphs (a) or (b) and, as to (c) would have been unlikely to cause a person to make a properly made submission when the change did not alter the characterisation or function or introduce a new use or alternate physical form or layout.

[25] I am satisfied, for these reasons, that Council had power to approve the application despite differences from its form at the time of public notification; and, that those changes were not such as to require the developer to undertake further notification. For the sake of completeness, it is appropriate to record that the conclusion would be no different if the issue was considered solely in the light of the provisions of IPA, i.e. without reference to the PEA.

[26] The relevant IPA provisions are s3.2.9, 3.2.10, 3.5.11 and 3.5.17. Under s3.2.9 the assessment manager may only permit a change to an application if it would not adversely affect the ability of any person to assess that changed application and, under s3.2.10 must be satisfied that change "... if the notification stage were to apply to the change, it would not be likely to attract a submission objecting to the things comprising the change". However, s3.5.11 permits the assessment manager to approve all or part of an application subject to conditions, and there is no apparent restriction upon that power. If only partial approval is granted, the balance of the application is taken to be refused: s3.5.11(6)(c).

[27] In the absence of any express words of limitation, or circumstances where they could properly be implied, the Council's powers under this section should not be construed in a way which unduly limits them. As Newton DCJ said in Zarb v Brisbane City Council [2005] QPEC 4, albeit in a different context:

"[6] Although the circumstances of a case may favour the adoption of a comparable view of the concept of "minor change" for both development approvals and applications, it is not permissible, in my opinion, to assume that the legislature intended such an approach to be adopted in every case. Had the legislature intended to apply the definition of "minor change" in Schedule 10 when interpreting Section 4.1.52 of the Act, it would have been a simple matter to clearly express such intention. The legislature has seen fit not to do so and there is no warrant, in my view, for importing the statutory definition to a development application as a matter of course."

[28] Nor should the subsection be read in a way which places constraints upon its operation in the many differing circumstances which may prevail during the IDAS process (of which this is a vivid example).

[29] Finally, the Appellant relied upon the decision in Mison v Randwick Municipal Council (1991) 23 NSWLR 734, a case which is authority for the proposition that conditions imposed as part of a purported approval of a development proposal cannot go so far as to significantly alter the development in respect of which the application is made; and if they do the result is not, in truth, an approval. In that case, however, Council purported to postpone, to a later date, a determination about the precise height of a building and that is a plain misuse of the ordinary conditions power. Barakat (supra) is a decision of a similar kind. For the reasons given earlier, it cannot be said that in the present instance the local authority was approving something quite different from what was revealed by the original development application.

[1] The other two appeals, BD162/2005 and BD170/2005 have been discontinued.

[2] The second co-respondent was excused, without objection, from the hearing of this matter

[4] IPA s6.1.30(3)(a); and, see the Explanatory Notes

[5] Fitzgerald P, Davies JA and Ambrose J

[6] Carillon Development Ltd v Maroochy Shire Council [2000] QPELR 216; Ryan v Brisbane City Council [2005] QPEC 17

[7] Westfield Ltd v Gold Coast City Council [2000] QPELR 121

[8] Carillon (supra) at 218; Ausbild Pty Ltd v Redland Shire Council [2001] QPELR 409; Coleman v Brisbane City Council [2002] QPELR 288; Sinnamon v Miriam Vale Shire Council [2003] QPELR 195

[9] Carillon (supra) at 218; Ausbild (supra) at 410

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